Blain v. Brady

• Decision Date: 10 December 1885
• Citation: 1 A. 609,64 Md. 373
• Parties: BLAIN v. BRADY.
• Court: Maryland Court of Appeals

1 A. 609

64 Md. 373

BLAIN v. BRADY.

Court of Appeals of Maryland

December 10, 1885

Appeal from circuit court, Prince George's county.

D R. Magruder, for appellant.

Jos. K. Roberts, for appellee.

MILLER J.

This appeal is from an order refusing to grant the injunction asked for in the bill filed by the appellant, and dismissing the same with costs. It appears from the bill and accompanying exhibits that the complainant, in May, 1878 purchased a farm in Prince George's county, containing about 107 acres, for the sum of $30 per acre, amounting in all to $3,215.62; this farm adjoining on one side an unnavigable stream of water known as the "South-west branch of the Patuxant river," on the opposite side of which is the land of the defendant, which is lower than that of the complainant, so that in times of heavy rains and freshets, when the stream is swollen and overflows its banks such overflow found its natural outlet over the defendant's land, and little or none of it came upon the land of the complainant owing to its higher location. The bill charges that this state of things has continued from time immemorial, and the complaint is that the defendant has recently erected an embankment on his lands adjacent to the stream for the purpose of preventing this overflow of water thereon, whereby, in times of heavy rains and freshets, the overflow of water, instead of passing over his lands as it had been accustomed so to pass, has been thrown upon the complainant's land, thereby causing "a considerable portion" of the same to be submerged and drowned, and the crops growing thereon to be entirely destroyed. It then charges that so long as this embankment shall be continued the portion of the complainant's land so submerged will be rendered valueless, as it will be impossible to cultivate the same; and thus an irreparable injury to his land is caused, and will be continued unless this embankment shall be removed by the aid of a court of equity; that he has been credibly informed and believes, and therefore charges, that the defendant is engaged in preparing timber and other material for the purpose of erecting upon his said land other works and obstructions for the more full and effectual prevention of said overflow over his land, and of further and more fully and effectually and permanently causing the same to flow over and upon the land of the complainant; that by the natural conformation of the complainant's land the water, when thus thrown upon it, has and can have no outlet therefrom, but remains thereon to the permanent injury thereof, and to the ultimate and entire ruin and destruction thereof, for the purpose for which it has always been used and enjoyed, to-wit, for the purpose of cultivation, and for any other practicable or useful purpose. The bill also charges that the complainant has instituted an action at law against the defendant to recover damages for the injury thus occasioned to his land and crops; but he avers that such action, and others which he may...